Citation Nr: 0433755
Decision Date: 12/22/04 Archive Date: 12/29/04
DOCKET NO. 03-06 962 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office in San
Juan, the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an initial disability rating in excess of 30
percent for major depressive disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The veteran served on active duty from June 1974 to April
1975.
This case comes to the Board of Veterans' Appeals
(hereinafter Board) on appeal from an October 2002 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in San Juan, Puerto Rico, which granted service
connection for major depressive disorder and assigned a 30
percent disability rating effective February 9, 1999. The
veteran appealed for a higher initial rating. See Fenderson
v. West, 12 Vet. App. 119, 125-26 (1999).
In July 2003, additional records were submitted to the RO and
were subsequently forwarded to the Board later that month.
The records contained highlights of VA progress notes, dated
from January through July 2002, and results of private
psychiatric evaluations conducted in June 2003. Typically,
additional evidence received by the Board must be received
within 90 days following the certification of the appeal from
the RO to the Board. See, 38 C.F.R. § 20.1304 (2003). In
this case, the evidence was received more than 90 days
following certification of the appeal to the Board.
Nevertheless, the Board finds that such delay was caused by
the RO's failure to timely forward the appellate record to
the Board, and as a result, the Board is not precluded from
considering such additional evidence. Moreover, in light of
the Board's favorable treatment of such additional evidence,
the Board finds that the veteran is not prejudiced by the
Board's initial consideration of the evidence. See, e.g.,
Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
FINDINGS OF FACT
1. The VA has fulfilled its duty to assist the veteran by
fully developing all relevant evidence necessary for the
equitable disposition of the issue on appeal.
2. The medical evidence tends to show that the veteran's
major depressive disorder is manifested by occupational and
social impairment, with deficiencies in most areas, such as
work, school, family relations, judgment, thinking, or mood,
due to such symptoms as: suicidal ideation; near-continuous
panic or depression affecting the ability to function
independently, appropriately and effectively; difficulty in
adapting to stressful circumstances (including work or a
worklike setting); and the inability to establish and
maintain effective relationships.
4. The veteran's service-connected major depressive disorder
is not manifested by total social impairment, gross
impairment in thought processes or communication; persistent
delusions; grossly inappropriate behavior; persistent danger
of hurting self or others; intermittent inability to perform
activities of daily living (including maintenance of minimal
personal hygiene); disorientation to time or place; memory
loss for names of close relatives, own occupation, or own
name.
CONCLUSION OF LAW
Resolving all reasonable doubt in favor of the veteran, the
criteria for an initial rating of 70 percent, but no higher,
for a major depressive disorder have been met. 38 U.S.C.A.
§§ 1155, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3,
4.7, 4.126, 4.130, Diagnostic Code 9434 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) is
applicable to all claims filed on or after the date of its
enactment, November 9, 2000. This new law redefines VA's
obligations insofar as properly notifying and assisting
veterans in developing their claims. In response to notice
of VA's decision to grant the veteran's claim for service
connection for major depressive disorder (a claim for which
VA had already given notice required by 38 U.S.C.A.
§ 5103(a)) and to assign this disability a 30 percent rating,
he filed a notice of disagreement that raised a new issue.
In accordance with the provisions of 38 U.S.C.A. § 7105(d),
VA took proper action and issued a statement of the case.
However, 38 U.S.C.A. § 5103(a) does not require VA to provide
notice of the information and evidence necessary to
substantiate the newly raised issue. VAOGCPREC 8-2003 (Dec.
22, 2003).
The revised VCAA duty to assist requires that VA make
reasonable efforts to assist the claimant in obtaining
evidence necessary to substantiate a claim. See 38 C.F.R.
§ 3.159. In this case, all identified medical records
relevant to the issue on appeal have been requested or
obtained. VA provided the veteran with a medical
examination. The available medical evidence is sufficient
for an adequate determination. Therefore, the Board finds
the duty to assist and duty to notify provisions of the VCAA
have been fulfilled.
I. Factual background.
The record indicates that the veteran entered active duty in
June 1974. The veteran was admitted to a military hospital
on October 29, 1974, with a diagnosis of low back pain and
neurological deficits. He was transferred to neurosurgery
service on November 1, 1974 for evaluation. It was noted
that the veteran was initially seen complaining of a low back
pain, which apparently began during basic training 5 months
ago. The veteran denied any severe psychiatric problems, but
did claim a history of a recent anxiety, tremulousness and
palpation along with hypnologic phenomena. No history of
previous emotional difficulties requiring psychiatric
intervention were noted. Following an evaluation, the
veteran was diagnosed with immature personality, chronic,
moderate, unchanged, manifested by inadequate adult responses
to the military setting, and subsequent regression to
mechanisms demonstrating his dependency needs and unmet
gratifications and marked psychosomatic components to his low
back pain. The veteran was returned to duty with medication
for anxiety and low back pain. It was determined that,
because of his chracterologic problem and probable secondary
gain from his low back pain preventing any further productive
work out of his experience with the Army, it was recommended
that the veteran be given an Administrative Discharge.
On the occasion of his initial VA examination in June 1975,
the veteran was diagnosed with conversion reaction manifested
by backache and pains on the left leg.
By a rating action of February 1976, service connection was
established for myositis of the lumbar spine, with clinical
radiculopathy; a 20 percent rating was assigned, effective
April 4, 1975.
Medical evidence of record, including VA as well as private
treatment reports, dated from 1977 through 1996, reflect
ongoing treatment for several disabilities, including a low
back disorder and a psychiatric disorder, variously diagnosed
as depressive neurosis, hysterical neurosis, and major
depression. In a medical statement from Jesus Infanzon-
Ochoteco, M.D., dated in October 1978, he noted that the
veteran carried a current diagnosis of depressive neurosis,
moderately severe. Dr. Ochoteco reported that the veteran
received severe lesions on his back while on active duty, was
honorably discharged due to his condition, and he had been
unable to find employment; his employers had to lay him off
because of his absences. Dr. Ochoteco concluded that the
veteran's current mental condition was directly due to his
physical limitation. Following a VA examination by a board
of psychiatrists in August 1980, the veteran was diagnosed
with a hysterical neurosis, conversion type with depression,
and borderline personality disorder. The veteran was
admitted at a VA hospital in December 1981, with complaints
of insomnia, crying spells, restlessness, and suicidal
ideations; at the time of his discharge, in January 1982, the
veteran was given a diagnosis of major depression. Similar
complaints and diagnosis was reported on a VA hospital report
dated in October 1982.
In a private medical statement, dated in December 1984, Luis
Raul Alfaro, M.D., reported that the veteran's emotional
condition had been wrongly diagnosed during active service,
and that his present mental condition was a maturation of the
original one. Following a VA psychiatric examination in
January 1985, the veteran was diagnosed with atypical anxiety
disorder, marked, severe.
In October 1987, the veteran was admitted to a VA hospital
with complaints of anxiety, psychomotor retardation,
anguished facial expression, depressed mood and suicidal
remunerations. During hospitalization, the veteran received
occupational therapy and recreational therapy. The discharge
diagnoses were major depression with psychotic features and
low back pain. VA outpatient treatment reports, dated from
1993 through 1996, reflect ongoing treatment for a
psychiatric disorder, diagnosed as major depression,
schizophrenia, and depressive disorder; they also reflect
treatment for a chronic low back syndrome.
Received in July 1997 were medical records from the Social
Security Administration, indicating that the veteran was
awarded disability benefits due to undifferentiated
schizophrenia; it was noted that his disability began in
March 1978.
Received in May 2000 was a psychiatric expert witness report
from Dr. Guillermo J. Hoyos, reflecting an evaluation and
analysis of the veteran's medical records and mental
condition from November 1999 through April 2000. The veteran
indicated that he felt anxious, desperate and frustrated. He
stated that he has lost everything on account of his illness,
including his marriage; he indicated that he felt useless.
The veteran reported suicidal attempts in the past, and
current suicidal thoughts. He also reported having problems
with sleep disturbance, partially due to intense pain and
numbness in his legs. It was noted that the veteran was
currently living with his parents; he noted that the
relationship with his wife was fair, but not so with his ex-
wife. He avoided all contact with groups, because he is
easily angered. He indicated that he did not tolerate being
around other people or crowds, because he tends to become
anxious.
On mental status examination, it was observed that the
veteran had difficulty sitting and relaxing. He was alert
and cooperative, and related to the examiner in a fair
manner. He looked apprehensive, anxious and depressed; he
also became frustrated when he narrated his life events. He
was casually dressed. He was fully oriented. He had
problems with immediate and recent memory; he also had
problems with concentration, which produced anger. Mini-
mental state examination was satisfactory, except for some
degree of memory problems. Attention was fair. Language and
speech was coherent and well coordinated. Thought processes
were also well coordinated. Affect was depressed and mood
was anxious. He complained of ideas of reference. Most
prominent thoughts were depressive processes to the point
that he felt like committing suicide. There were no real
hallucinations or psychotic processes. Judgment was fair for
activities of everyday life. The pertinent diagnoses were
schizophrenia, by history; schizoaffective disorder, by
history; and major depression, chronic. The examiner
assigned a Global Adaptive Functioning score of 40 to 50.
The examiner concluded that the due to organic persistent
symptoms related to his back, the veteran developed anxiety
and depressive feelings at times, ideas of persecution and
auditory hallucinations; he noted that these symptoms pointed
toward a major depression, chronic, with psychotic features.
The examiner observed that there was evidence showing that
the veteran's interpersonal relationships changed totally
when he came back from the army. The examiner stated that
the veteran's emotional condition originated as a result of
organic trauma incurred while in service and the sequel after
discharge, which included the emotional condition.
The veteran was afforded a VA examination in April 2002, at
which time he indicated that he had been feeling sad,
depressed, irritable, with loss of interest in daily living
activities, loss of energy, insomnia, inability to feel
pleasure in daily task, with loss of interest in sex,
inability to concentrate, feelings of worthlessness, anxiety,
tension, and restlessness. On mental status examination, he
was described as being well developed and well nourished. He
was appropriately dressed with adequate hygiene, cooperative,
and using crutches. He was spontaneous, and established eye
contact with the examiner. He was alert, fully aware of the
interview situation, and in contact with reality. There was
no evidence of psychomotor retardation or agitation. There
were no tics, no tremors, and no abnormal involuntary
movements. His thought process was coherent and logical.
There was no looseness of association and no evidence of
disorganized speech. There was no evidence of delusions, and
no evidence of hallucinations. He had no phobia, no
obsessions, and no suicidal ideas. In the content of
thought, there were feelings of worthlessness. His mood was
depressed and his affect was constricted and appropriate. He
was oriented in person, place, and time. His memory for
recent, remote, and immediate events was intact. His
abstraction capacity was normal. His judgment was good. His
insight was adequate.
The pertinent diagnosis was major depressive disorder,
recurrent, severe and chronic, without psychotic features;
the current GAF score was 50. The examiner explained that
the veteran had serious symptoms and serious impairment in
social and occupational functioning, which meets DSM-IV
definition in a GAF of 50. The examiner concluded that the
veteran's mental condition met the DSM-IV criteria to
establish a diagnosis of major depressive disorder,
recurrent, severe, without psychotic features, precipitated
by the persistent physical disabilities produced by his
service-connected spinal disc condition that were limiting
the veteran's capacity to engage in productive work, and
interfered with his quality of life since about 24 years ago.
Received in August 2002 were VA progress notes, dated from
July 2000 through July 2002, which show that the veteran
continued to receive clinical attention and treatment for
chronic low back pain, as well as anxiety and depression.
Subsequently received VA progress notes, dated from September
2002 through December 2002, reflect treatment solely for
symptoms associated with the veteran's chronic back disorder.
Received in July 2003 were records from Dr. Guillermo J.
Hoyos, which included a medical certificate and evaluation
review, dated from January 2002 through May 2003. Among
these reports was the result of the VA psychiatric
examination conducted in April 2002. These records indicate
that the veteran was interviewed in May 2003, at which time
he stated that he has remained more or less the same. He
reported experiencing several panic attacks; he reported a
recent panic attack with ideas of reference. He indicated
that he does not socialize, and referred to feeling more
secure at home. Examination revealed some deficiency of
recent and immediate memory. Concentration was deficient.
Thought content was characterized by anxiety, depressive and
somatic processes. Judgment was conserved; he had some
insight into his condition. The diagnoses were
schizophrenia, by history; schizoaffective disorder by
history, and major depression, severe, chronic, recurring,
nonpsychotic at present. The veteran was assigned a GAF
score of 50; the examiner stated that the veteran's condition
was long-term and chronically disabling for the rest of his
life, requiring permanent medical and psychiatric treatment.
II. Legal analysis.
Generally, disability evaluations are determined by
evaluating the extent to which a veteran's service-connected
disability adversely affects his ability to function under
the ordinary conditions of daily life, including employment,
by comparing his symptomatology with the criteria set forth
in the VA Schedule for Rating Disabilities (Rating Schedule).
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10
(2004). If two evaluations are potentially applicable, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
evaluation; otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7 (2004).
Where an award of service connection for a disability has
been granted and the assignment of an initial evaluation is
at issue, separate evaluations can be assigned for separate
periods of time based on the facts found. In other words,
the evaluations may be "staged." Fenderson v. West, 12 Vet.
App. 119, 126 (2001). A disability may require re-evaluation
in accordance with changes in a veteran's condition. It is
thus essential, in determining the level of current
impairment, that the disability be considered in the context
of the entire recorded history. 38 C.F.R. § 4.1 (2004).
Major depressive disorders are evaluated under the provisions
set forth at 38 C.F.R. § 4.130, Diagnostic Code 9434 (2004).
Pursuant to those criteria, a 30 percent evaluation is
assigned where there is occupational and social impairment
with occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, and mild
memory loss (such as forgetting names, directions, or recent
events).
A 50 percent evaluation is predicated upon a showing of
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week, difficulty in understanding
complex commands; impairment of short- or long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances in motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships.
Assignment of a 70 percent evaluation is contemplated where
there is occupational and social impairment with deficiencies
in most areas, such as work, school, family relations,
judgment, thinking or mood, due to such symptoms as: suicidal
ideation, obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately, and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); and inability to establish or
maintain effective relationships.
A 100 percent evaluation is warranted for total occupational
and social impairment due to such symptoms as: gross
impairment in thought processes or communication; persistent
danger of hurting oneself or others; intermittent inability
to perform activities of daily living (including maintenance
of minimal personal hygiene); disorientation to time or
place; and memory loss for names of close relatives, own
occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic
Code 9434 (2004).
The Global Assessment of Functioning (GAF) is a scale
reflecting the psychological, social, and occupational
functioning on a hypothetical continuum of mental-health
illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996),
citing Diagnostic and Statistical Manual of Mental Disorders
(4th ed.1994). A GAF score of 41 to 50 is defined as
denoting serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifter) or any serious
impairment in social, occupational, or school functioning
(e.g., no friends, unable to keep a job). A score of 51 to
60 is defined as moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers). A
GAF score of 61 to 70 is defined as some mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in
social, occupational, or school functioning (e.g., occasional
truancy, or theft within the household), but generally
functioning pretty well, with some meaningful interpersonal
relationships. A score of 71 to 80 indicates that, if
symptoms are present at all, they are transient and
expectable reactions to psychosocial stressors with no more
than slight impairment in social and occupational
functioning. See Carpenter v. Brown, 8 Vet. App. 240, 242-
244 (1995).
After careful review of the evidentiary record, the Board
finds that the record supports the veteran's statements to
the effect that he suffers from continuous, severe depression
requiring medication, and that the depression impairs him
both socially and industrially. Significantly, the medical
evidence of record also reflects occasional suicidal
ideations, anxiety and social withdrawal. Moreover, the most
recent VA examination in April 2002 described the veteran's
condition as recurrent, severe and chronic; and, he was
assigned a GAF score of 50, which reflects a serious
impairment in social and occupational functioning. Resolving
reasonable doubt in favor of the veteran, the Board finds
that his service-connected depressive disorder is manifested
by deficient thinking and mood, near-continuous depression
affecting the ability to function independently,
appropriately and effectively, difficulty in adapting to
stressful circumstances, and social isolation rendering him
unable to establish and maintain effective relationships. As
such, the Board finds that the evidence supports the award of
a 70 percent disability evaluation for the service-connected
major depressive disorder. 38 U.S.C.A. §§ 1155, 5103, 5103A,
5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code
9434 (2004).
However, the Board finds that a disability rating in excess
of 70 percent is not warranted as this time. Specifically,
the veteran's service-connected major depressive disorder is
not shown to be productive of total occupational and social
impairment, due to such symptoms as: gross impairment in
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation, or
own name.
In making its determination, the Board has considered 38
U.S.C.A. § 5107(b). Section 5107(b) expressly provides that
the benefit of the doubt rule must be applied to a claim when
the evidence submitted in support of the claim is in relative
equipoise. The evidence is in relative equipoise when there
is an approximate balance of positive and negative evidence
which does not satisfactorily prove or disprove the claim.
When the evidence is in relative equipoise, the reasonable
doubt rule must be applied to the claim, and thus, the claim
must be resolved in favor of the claimant. See Massey v.
Brown, 7 Vet. App. 204, 206-207 (1994); Hayes v. Brown, 5
Vet. App. 60, 69-70 (1993); Gilbert v. Derwinski, 1 Vet. App.
49, 53-56 (1990). In this case, after reviewing the evidence
of record, the Board finds that the preponderance of the
evidence is against the assignment of a disability evaluation
in excess of 70 percent for the service-connected major
depressive disorder.
The potential application of various provisions of Title 38
of the Code of Federal Regulations (2003) have been
considered whether or not they were raised by the appellant
as required by the decision reached in Schafrath v.
Derwinski, 1 Vet. App. 589, 593 (1991). The Board has
considered whether an extra-schedular evaluation pursuant to
the provisions of 38 C.F.R. § 3.321(b)(1) (2003) is
warranted. In the instant case, however, there has been no
showing that the veteran's depression alone has caused marked
interference with employment (i.e., beyond that contemplated
in the currently assigned evaluation) or the need for
frequent periods of hospitalization, or have otherwise
rendered impracticable the application of the regular
schedular standards. In this regard, the Board notes that in
a February 2003 rating decision, the veteran was granted a
total rating bases on individual unemployability due to his
service-connected back disability and major depressive
disorder. Specifically, the Board finds that, although the
medical evidence shows the veteran's depression is productive
of an inability to keep a job, such factor has been
considered in the current award of a 70 percent rating for
depression in this decision. In essence, the Board finds
that no evidence currently of record shows that there is an
exceptional or unusual disability picture in this case, which
renders impracticable the application of the regular
schedular standards.
Moreover, after reviewing the evidence of record presented in
this case, the Board finds that the veteran's service-
connected major depressive disorder has not been shown to be
more or less than 70 percent disabling during any period when
service connection has been in effect. See Fenderson, supra.
ORDER
An initial disability rating of 70 percent for major
depressive disorder is granted, subject to the law and
regulations applicable to the payment of monetary benefits.
____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2